English Pragmatism and Italian Virtue

Abstract

This article provides a comparative analysis of the Italian and the English regimes of improperly or illegally obtained evidence (hereafter IOE) in civil law cases. We will use the term regime to indicate the system of rules and juridical practices that regulate IOE. In the past decade, the Italian and the English regimes of IOE have been adapting to new institutional and economic demands. Until recently, the Italian civil justice system mechanically assumed that IOE was inadmissible. In contrast to the Italian regime, IOE was normally allowed in English courts. However, a series of court decisions has changed the assumption of admissibility of IOE. In England and Wales (the two nations share the same civil procedure system), the introduction of the Civil Procedure Rules 1998 (hereafter CPR) and the Human Rights Act 1998 (hereafter HRA) has instead imposed a duty to exclude an IOE that has been obtained as a result of an outrageous violation of the European Convention on Human Rights. This article contends that the two regimes of IOE are moving into an untested terrain, albeit from different starting points, and that a comparative analysis might help clarify the relation between the admissibility of IOE that triggers protected rights, such as Article 8 ECHR, and the functioning of the civil justice system. The article is divided in three sections preceded by an introduction and followed by a conclusion. The first two sections discuss the English and Welsh as well as the Italian regimes of IOE. The third section focuses on how the two legal systems seek to strike a balance between the violation of rights and the compelling demand for efficient civil trials.